Jury begins deliberations in 2012 Palermo dog attack trial

Oroville >> A jury has begun deliberations in the case of two people charged following a serious dog attack in May 2012.

The Butte County Superior Court panel of seven woman and five men deliberated for about two hours in the cases of Chic Gordon, 56, and Theodore Jason Scherbenske, 57, before adjourning for the day.

Gordon is charged with a felony count of allowing a vicious animal at large while Scherbenske is charged with a felony count of being an accessory after the fact.

During closing arguments, Gordon's attorney, Philip Heithecker, said there is no doubt that dogs came from Gordon's Palermo property to attack Virginia Lorusso on May 21, 2012. However, he said the prosecution failed to prove key elements, including that Gordon failed to use ordinary care for the dog and that Lorusso had taken all the precautions that a reasonable person would in the attack.

"No one should have to suffer like that, but you can't let your sympathies guide your decision," Heithecker said.

Defining dangerous

A key defense argument was that the dogs, a pit bull named Gus and a Queensland heeler named Shane, were only potentially dangerous prior to the attack. Heithecker said the dogs only became dangerous after the attack.

Deputy district attorney Kennedy Rizzuto said the word "dangerous" isn't defined by law so jurors will need to consider the ordinary, everyday definition of the word. She argued that a dog couldn't get a free bite before being deemed dangerous.

Rizzuto said if a child went toward a cliff, a parent would deem it dangerous, not potentially dangerous, even if the child didn't fall off.

"In this situation, I submit to you the dog is simply dangerous," Rizzuto said.

She said Gus had a propensity to go after people and causing them to take defensive action. The dog reacted to stressful situations with aggression.

Butte County Animal Control officer Ryan Soulsby concluded during a visit prior to the attack that Gus was one of the worst dogs he's ever seen. He said Gus was very dangerous and would do bad things if it got off Gordon's property.

Rizzuto said Gordon and her son, Ruben Cambra, knew the dogs were dangerous. She said several members of Lorusso's family spoke with Gordon following incidents where Gus escaped and chased people, including children.

The prosecutor said Gordon knew the dogs were dangerous. She reportedly told Lorusso's son, Carl, that the dogs were guard dogs and they weren't trained to be nice.

Gordon testified that she did not say that.

Rizzuto said the field fencing wasn't adequate. It was wire fencing forming 6 inch by 6 inch squares, topped with barbed wire.

"We know that is not adequate for dogs, " she said. "The defendant knew it was not adequate for dogs."

Heithecker argued that Gordon made repairs to the fence based on accounts of the dogs going through or under the fence. He said she didn't have the resources to build a new fence.

The defense attorney said jurors would have to rely on experts to define dangerousness. Dog expert Ron Berman testified for the defense that a dog would have to engage in an unprovoked biting or attack, but that wasn't done before the attack.

Regarding precautions that Virginia Lorusso may have taken. Heithecker noted that the Lorussos didn't appear to do anything to mend the common fence. Also, Lorusso's use of a stick to knock immature plums off a tree may have set Gus off because the dog had bad experiences with sticks or poles, Heithecker said.

Accessory or samaritan

Scherbenske is charged as an accessory for allegedly transporting Cambra and Gus from the site.

Cambra, 34, is charged with allowing a vicious animal at large, but isn't mentally competent to stand trial.

However, Rizzuto told jurors that they will need to determine if Cambra committed a crime before determining if Scherbenske was an accessory after the fact.

Scherbenske admitted he rushed to the site after receiving a brief emergency call from Gordon. He passed an ambulance that was speeding to the scene.

Rizzuto said Scherbenske knew that he was getting Gus and Cambra away from whatever Gus did.

Scherbenske's attorney, Eric Ortner, argued that his client needed to have the knowledge that Cambra committed a felony. He said Scherbenske knew something horrible had happened and that Gus would likely need to be quarantined, but there was insufficient proof he knew it was a felony.

Ortner echoed his opening statement comments that Scherbenske's situation was a case of no good deed going unpunished.

The jury will resume deliberations Thursday. The defendants remain out of custody.